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Wednesday, November 05, 2008

Is "Conservatism" more popular than conservatives?

I ask this question in light of the victory of the Marriage Amendment in a state - California - in which McCain never had even a glimmer of hope of carrying in this election. There is some nuance here: McCain was something less than a full-throated opponent of gay marriage, while Obama was something less than an advocate. Still, I can't help but wonder about that slice of the California (and Florida) electorate that cast ballots to protect traditional marriage, while simultaneously casting ballots in favor of a president who will, at a minimum, appoint judges that will vitiate that protection.

This may point to at least part of the way back for the Republican party over the next two years. Since it seems that the Senate will retain a filibuster-capable margin, there is one area where they should be absolutely prepared to use it: judicial appointments.

But they must be careful to deploy it for the right reasons. For instance, Obama ran and was elected as a pro-abortion candidate; support for Roe is both non-negotiable for his base and largely (if incoherently) popular with the broader public. Obama's judicial nominees will therefore inevitably swear fealty to Roe, and there isn't much the Republican rump can do about it. This is not to say that Republicans should abandon their opposition to abortion and the judges that defend it; it is to say that in the current environment, the Republicans must be about something other than abortion.

In contrast, consider gun control. Obama did NOT run as the gun-control candidate; on the contrary, he endorsed the Heller decision, and his party has generally muted its support for broad-based gun-control. But Obama's judicial nominees will almost certainly be the kind of lawyers who reject Heller. This provides Republicans with a critical opening -- a wedge issue, if you will -- to force Obama into appointing judges who are operationally much more moderate than they would otherwise be. By using Heller as their own litmus test -- "A vote for cloture is a vote for gun control!" -- they are not only reasonably likely to hold their caucus together for a filibuster but also persuade (or intimidate) the more centrist Democrats into joining their opposition. This would be a powerful political defeat for Obama and buy them concessions across a range of legal issues beyond the nominal one of gun control.

Based on last night's results, I am inclined to put defense of traditional marriage into the Heller category (as a political winner) rather than in the Roe category (by itself, a political loser).

Parenthetically, the electoral map depresses me. Obama was able to capture a lot of Republican real estate last night. In contrast, absent the epic failure of an Obama presidency, it is tough to imagine a Republican ever doing as well as even Bush 41 did in '88. Steve Sailer has a post on the startling correlation between the '00, '04, and '08 election results that show how static our politics have become.